19 May 2017

Charu Sudan Kasturi, TT, New Delhi, May 18: The International Court of Justice (ICJ) has issued provisional orders barring Pakistan from executing Kulbhushan Jadhav, the former Indian Navy officer Islamabad has branded a spy.

For New Delhi, the interim ruling marks a diplomatic win that could set a global precedent. The court in the Hague broke with a Cold War-era norm under which the Vienna Convention on consular access was normally not applied to alleged spies.

The following are some of the key questions and answers on the ICJ's interim ruling:

What does the ICJ order mean for Jadhav?

The ICJ has extended his life till at least the time it decides on its final verdict. Pakistan today reaffirmed its refusal to accept the ICJ's jurisdiction on "matters related to national security".

But Pakistan's attorney-general said: "We had assured the court unambiguously that Commander Jadhav would be provided every opportunity and remedy available under the law to defend his case. Commander Jadhav still has ample time to petition for clemency." Pakistan pointedly cites Jadhav's rank to claim he is a serving navy officer.

The question of clemency will come into play on the basis of the decision on any appeal in Pakistan.

Even if an appeal is dismissed by Pakistan's army chief and a subsequent mercy petition to the Pakistan President is rejected, the ICJ ruling bars Islamabad from executing Jadhav till the Hague court takes the final decision.

But the ICJ is not looking into whether Jadhav is a spy. The ICJ is considering whether the trial and sentencing of Jadhav in Pakistan without consular access being granted to him was legal. If the ICJ rules that the death sentence was invalid, Pakistan can prosecute him again after granting consular access.

The best hope for Jadhav to return home still lies in back-channel talks and a diplomatic deal that usually involves a swap of those accused of espionage.

What is the ICJ case?

India approached the ICJ on May 8 to seek the annulment of the death sentence awarded by a Pakistani military court to Jadhav and to ask that he be released.

India also requested the ICJ to "indicate provisional measures" while it hears the case, barring Pakistan from executing Jadhav till the international court decides on the final verdict and demanding that Islamabad keep the court informed of its actions.

What did the ICJ order on Thursday?

The ICJ accepted India's plea and issued provisional measures to Pakistan to ensure that Jadhav is not executed till the final judgment of the ICJ. Pakistan must keep the court informed of its actions, and the court will "remain seized" of the case till the final judgment, the 15-judge bench ruled.

Is the order binding?

Under international law, the order is binding on both India and Pakistan but the ICJ's decision had been flouted earlier. The US has thrice been in a situation identical to that of Pakistan at the ICJ, accused of denying consular access to suspects on the verge of execution. But the US went ahead with the execution in one of those instances. The ICJ held the US guilty of violating its order but that was the extent of the reprimand. The LaGrand case, as the instance is known, involved two German brothers.

What was the thrust of India's arguments?

India had argued that Pakistan had violated the Vienna Convention on Consular Relations by denying Jadhav access to its consular officers after his arrest and during his trial in a military court. This, India contended, had sullied the entire legal process leading to Jadhav's conviction.

India and Pakistan, New Delhi said, were parties to an Optional Protocol that grants "compulsory jurisdiction" to the ICJ in disputes over the Vienna Convention. The provisional measures were important, India said, because Jadhav could be executed any day.

What did Pakistan focus on?

Pakistan cited a series of other commitments that both neighbours have made to limit their recognition of the ICJ's mandate under specific circumstances. Pakistan cited a 2008 bilateral agreement with India that it claimed gave it leeway not to provide consular access to those charged with hurting national security. It contended that India's eventual demands for an annulment of the death sentence was beyond the ICJ's mandate.

How did the ICJ justify its interim decisions?

The ICJ said it did not need to decide at this stage whether it had jurisdiction over the larger aspects of the case relating to India's demand for an annulment of Jadhav's sentence. But it concluded it had "prima facie jurisdiction" to issue provisional measures, and that India's claim that its rights under the Vienna Convention were violated was "plausible". The ICJ said India's plea was urgent because Pakistan had not guaranteed that Jadhav would not be hanged before the culmination of the case in the ICJ.

Does India get consular access to Jadhav now?

Although India's case is built on Pakistan's alleged violation of the Vienna Convention, it did not specifically seek a directive from the ICJ ordering Pakistan to grant consular access to Jadhav. The ICJ did not order Pakistan to grant Jadhav consular access but did indicate it felt Islamabad should have extended the right to the former naval officer.

The denial of consular access till now to Jadhav has already vitiated the trial that led to his conviction, India says. Consular access now will not change that, India is arguing.

How long will the ICJ take for the final decision?

No timetable has been set. Pakistan had contended it was ready for an expeditious hearing to conclude the case within six weeks but it is unclear if that remains its position. Both sides will want time to prepare for what could prove a landmark case for bilateral relations. In terms of precedent, the ICJ has in such cases taken between four days and 28 months to settle disputes.

What if the ICJ finally concludes in favour of India?

Whenever in the past the ICJ has held one country guilty of violating the Vienna Convention by denying consular access to convicted nationals from another country, it has ordered a "review and reconsideration of convictions".

That has till now not been interpreted as an annulment of the sentences, as India has requested, or necessarily a retrial. Instead, that has been interpreted as requiring the guilty state - the US in each of the three prior cases - to pursue at least a judicial review to examine whether the convicts received a fair trial.

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